in the Civil Law, an obligation by which the effects of a debtor are made over to his creditor, in security of his debt. The word comes from the Greek ἱποθήκη, a thing subject to some obligation, from the verb ἱποθέκειν, suppose, I am subjected.

As the hypotheca is an engagement procured on purpose for the security of the creditor, various means have been employed to secure to him the benefit of the con- The use of the pawn or pledge is the most ancient, which is almost the same thing with the hypotheca, all the difference consisting in this, that the pledge is put into the creditor's hands, whereas, in a simple hypotheca, the thing remained in the possession of the debtor. It was found more easy and commodious to engage an estate by a civil covenant than by an actual delivery. Accordingly the expedient was first practised amongst the Romans; and from them the Greeks borrowed both the name and the thing; only, the better to prevent frauds, they used to fix some visible mark on the thing, that the public might know it was hypothecated or mortgaged by the proprietor; but the Romans, looking on such advertisements as injurious to the debtor, forbade the use of them.

The Roman lawyers distinguished four kinds of hypothecae; the conventional, which was with the will and consent of both parties; the legal, which was appointed by law, and for that reason called tacit; the praetor's pledge, when by the flight or non-appearing of the debtor, the creditor was put in possession of his effects; and the judiciary, when the creditor was put in possession by virtue of a sentence of the court.

The conventional hypotheca is subdivided into general and special. The hypotheca is general, when all the debtor's effects, both present and future, are engaged to the creditor. It is special, when limited to one or more particular things. With regard to the tacit hypotheca, the civilians reckon no less than twenty-six different species of this genus.